The Rostow Report

“Kansas is an example of a state that is taking proactive steps to  enforce [the] Bostock [ruling], announcing that gay and trans citizens  will be covered by all state non-discrimination laws that ban sex  discrimination.”


Last June, as you recall, the High Court handed our community an extraordinary 6-3 victory, ruling that GLBT discrimination was a form of sex bias, which in turn is outlawed in hundreds of federal, state and local laws. Not only is sex discrimination against the law all over the place, but courts are obliged to examine accusations of sex discrimination with heightened scrutiny, putting the burden of proof on the defendant to justify the offense. 

So what has changed since that glorious opinion was announced?

As far as the Trump administration is concerned, not much. Their strategy involves ignoring the Bostock ruling and forcing our side to sue for compliance. The good news is that, barring the appearance of a super-Trumpy judge, our side will win those lawsuits. The bad news is that we shouldn’t have to keep litigating a civil rights question that has already been laid to rest by the highest court in the land. 

Normally, the Justice Department issues guidelines to other federal agencies to revise policies in the wake of new Supreme Court decisions. Not surprisingly, Mr. Barr and company have yet to do so in our case. Last month, we discussed how Ben Carson and the Department of Housing and Urban Development continue to insist, wrongly, that transgender Americans are not covered by the Fair Housing Act. We are suing. And we are also suing to get rid of Trump’s anti-transgender health care policy that was meant to go into effect mid-August. That policy, which dispensed with mandatory trans coverage under the Affordable Care Act, has now been put on hold through a preliminary injunction from a federal court in New York. 


In Idaho, where lawmakers risked Covid to pass two anti-transgender laws at the close of session, another federal court has just put a hold on a rule that prevents trans women from competing against cis women in school sports, while another judge has shelved the other law, that stopped trans-people in the Spud State from changing the gender on their birth certificates. All these judges have relied on the High Court’s June ruling in their opinions, and the sports judge noted that trans-women in school sports are already required to suppress male hormones for a year before being eligible to compete. 

Meanwhile, Kansas is an example of a state that is taking proactive steps to enforce Bostock, announcing that gay and trans citizens will be covered by all state non-discrimination laws that ban sex discrimination. Don’t be too surprised. Kansas may be a red state, but it has a Democratic governor who sets the pace. I’m married to a Jayhawk so I particularly notice developments in the Sunflower State, but I assume other Democratic-led states have taken similar steps. Too bad for the red-led states where we have to wait for a new administration to lead us to the post-Bostock world.


Well, that was a turgid start to our column. Before we continue, may I share a pet peeve? Whenever I scan Google News, I enjoy the science section with its provocative click bait about multiple dimensions of time and space, near-Earth planets and arcane sea creatures. For the last week or so, however, it has included news of an asteroid that is scheduled to pass close to us on November 2. Of course I clicked when I first saw this headline, and I learned that the asteroid is small and harmless. It will miss Earth, but on the rare chance it hits, it will break up into sparkly meteorites and present no danger. 

That has not stopped the headline writers from every media outlet that covers this story from proclaiming things like: “Asteroid Headed For Earth On Election Eve!” Yes, I understand. The whole point is to get people to access the story, and a headline like: “Tiny Innocuous Space Rock Will Miss Earth,” lacks the attraction of a sensational link. But it still annoys me. It’s fundamentally antithetical to one of journalism’s core values; the attempt to deliver true information. 

Meanwhile, the other science headline writers have their own tricks of the trade. Intriguing suggestions like: “Can We Go Back in Time?” will link to impenetrable articles from arcane physics journals about relativity theory. I still keep clicking on these as if I’ll discover a first-person account of someone who went back to 1944 to make sure the Allies won World War II and has reappeared to reveal what it was like to live under a Nazi regime for the last 76 years and why the outcome had to be reversed. 

 Thanks for letting me do that. My pet peeves are a vast menagerie of annoyances big and small, and it helps me to expose them to the light every now and again. Have you noticed, for example, that even the smallest transaction now triggers a labor-intensive request for feedback? You buy a goddamn bottle of shampoo and the drug store wants you to fill out a 20-page survey, complete with blank spaces to explain in writing why you gave the check-out clerk four stars instead of five and to suggest ways in which he or she might improve your experience. Okay, I’ll stop now.


On August 22, the House Ways and Means Committee released a 34-page report condemning the Department of Health and Human Services for granting a special waiver to South Carolina that allowed the state to let the anti-gay Miracle Hill Ministries bar GLBT adoptive and foster parents in violation of federal regulations.

Quite honestly, I was stunned by this story. I had no idea that the Trump HHS still enforced any anti-bias laws to begin with! I was almost pleased to learn that South Carolina required a waiver to discriminate. Miracle Hill, for the record, handles 15 percent of the Palmetto State foster kids. 

I won’t get into it this month, but the situation evokes next session’s huge, major, blockbuster, ginormous High Court case, Fulton v City of Philadelphia, which is scheduled for oral arguments November 4. (Just two days after the asteroid!) The case, which could determine the near-term future of the wall between church and state, pits Philadelphia against Catholic Social Services. The city has refused to let CSS place children due to its discriminatory policies. Catholic Social Services, in turn, wants to be exempt from city rules based on religious faith. 

I’m sure I’ll be paying close attention to the oral arguments at the Supreme Court on the morning of November 4. 

Not. I’ll be hungover, either from Champagne and gleeful carousing, or from consuming the entire contents of our liquor cabinet in despair. n